A key public law discussion in recent months concerns the vast number of statutory instruments (SIs) government is using to implement Brexit. Initially, it was said by government that c.800-1,000 SIs were required. That estimate has now been revised down to c.600 (while the estimated number of SIs has decreased the size of individual SIs has also increased). This aspect of the Brexit process is worthy of study for multiple reasons, perhaps most notably because of the level of democratic scrutiny that will be (realistically) provided. In this post, we introduce one aspect of Brexit SIs that, we argue, is worthy of close attention by public lawyers: the deletion of administrative functions.

Assume, delete, or coordinate?

In the UK, we are governed by a complex set of structures which exist across a range of layers. Government exists on the local, devolved, national, supranational level etc. Administrative functions—in the forms of powers and duties—exist throughout these levels. In respect of these functions, Brexit represents a process of redistributing powers and duties from the EU to domestic administrative bodies (or that is at least what is expected).

The key choice for government vis-à-vis any administrative function presently held by the EU is effectively three-fold: delete the function; assume the function on the national level (either on behalf of the UK or through the devolved nations); or continue to co-ordinate with the EU in the administration of the function. While each of these three options raise important questions of law and administration, we are concerned here with the range of administrative powers and duties government is choosing to simply ‘delete’ via SI in the course of the Brexit process.

What is being deleted?

We are already seeing some administrative functions effectively deleted. They range in their apparent significance from minor to potentially very serious. There are also partial deletions, e.g. where a power is to be assumed on the national level but requirements about how a power should be exercised are removed.

Finding examples is not an easy task: the explanatory notes attached to SIs do not necessarily explain this type of change and the content of the SIs typically makes little sense unless it is placed within the wider legislative jigsaw of which it is a piece. The following examples serve as illustrations of a wider pattern.

In the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018, BEIS removed access to online dispute resolution for UK consumers by revoking Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes.

The Explanatory Note to the Social Security Coordination Regulations, relaid in January 2019, states they have removed the requirement on the UK to make provisional payments to a claimant in the UK while a dispute is being resolved between the UK and EU member states relating to which state has the social security obligations to make payments.

The Equality (Amendment and Revocation) (EU Exit) Regulations 2018 retain Regulation 4(1) of the Equality Act 2010 (Amendment) Regulations 2012 which provides for the Treasury to publish a report from time to time reviewing whether women and men are receiving equal treatment in access to insurance services in the UK. However, the amending regulations removed regulation 4(3), which stated that the insurance services report must set out the objectives to be achieved by the Equality Act’s regulatory system as regards insurance services, and whether those objectives were being achieved.

There are also some trends in deletion we are observing that cut across multiple SIs and different policy areas. For instance, we are observing the deletion of articles in EU Regulations that require effective, dissuasive, and proportionate penalties. For instance, Article 5(8) of Council Regulation (EC) No. 2173/2005 provides for member states to impose effective, proportionate, and dissuasive penalties for breaches of the EU timber importation licensing scheme. This article has been deleted by the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018 with no alternative penalties regime or in fact any reference to penalties inserted into Council Regulation (EC) No. 2173/2005. The justification for the removal is unknown because its removal is not recorded in the accompanying explanatory note. Similarly, Article 36(3) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy is removed by the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018. Article 36(3) states ‘Member States shall adopt appropriate measures for ensuring control, inspection and enforcement of activities carried out within the scope of the CFP, including the establishment of effective, proportionate and dissuasive penalties.’ Again, this omission was not noted in the explanatory note to the regulations. In an entirely different sector, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 omits an EU law requirement for the imposition of effective, proportionate, and dissuasive penalties for the illicit manufacture of drug precursors. The explanatory note makes no reference to the removal of this Article, despite references to penalty provisions elsewhere in the explanatory note.

Why is deletion worthy of analysis?

SIs which, as part of the Brexit process, delete administrative functions presently held by the European Union constitute a subject worthy of analysis for multiple reasons. By the end of the process, the State may well have been redefined, with aspects of its responsibilities carved out as functions transferred from the EU to the UK are deleted. There are various—potentially very significant—practical implications of this, as demonstrated by the examples we have offered above. From a wider perspective, however, this category may also reveal something important about the difference between the governing styles and priorities of the European Union and the UK. Alternatively, it could be said that the deletion of functions may just be a government under pressure taking an easier route. If that is true, it will tell us something about the Brexit reform process and the quality of the SI legislative process in scrutinising such choices. Finally, if the category of deleted functions is large, we may find reasons to be sceptical of any suggestion—which Richard Rawlings raised the prospect of in an important recent report—that the Brexit process may lead to the ‘filling back in’ of the UK state that was, in part, ‘hollowed out’ by the transfer of power to the European Union in recent decades.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.